Exhibit
10.34


 


BERTUCCI’S CORPORATION 

EXECUTIVE SAVINGS AND INVESTMENT PLAN


 

















 


Table of
Contents


 


ARTICLE ONE—DEFINITIONS


 


1.1 Account 

1.2 Administrator 

1.3 Beneficiary 

1.4 Code 

1.5 Compensation 

1.6 Effective Date 

1.7 Employee 

1.8 Employer 

1.9 Employment Date 

1.10 Normal Retirement Date 

1.11 Participant 

1.12 Plan 

1.13 Plan Year 

1.14 Trust 

1.15 Trustee 
1.16 Valuation Date 

1.17 Year of Service


 


ARTICLE TWO—PLAN PARTICIPATION


 


2.1
Participation 

2.2 Termination of Participation


 


ARTICLE THREE—COMPENSATION DEFERRALS AND
EMPLOYER MATCHING CONTRIBUTIONS


 


3.1
Compensation Deferrals 

3.2 Employer Matching Contributions 

3.3 Timing of Contributions


 

















 


ARTICLE FOUR—ACCOUNTING RULES


 


4.1 Investment of Accounts and Accounting Rules


 


ARTICLE FIVE—VESTING, RETIREMENT AND
DISABILITY BENEFITS


 


5.1 Vesting 

5.2 Normal Retirement 

5.3 Permanent and Total
Disability


 


ARTICLE SIX—MANNER AND TIME OF DISTRIBUTING
BENEFITS


 


6.1 Manner of Payment 

6.2 Time of Commencement of Benefit Payments 

6.3 Furnishing Information 

6.4 Death Benefit 

6.5 Designation of Beneficiary 

6.6 Time and Mode of Distributing Death Benefits


 


ARTICLE SEVEN—ADMINISTRATION OF THE PLAN


 


7.1 Plan Administration 

7.2 Claims Procedure


 


ARTICLE EIGHT—AMENDMENT AND TERMINATION


 


8.1 Amendment 

8.2 Termination of the Plan


 


ARTICLE NINE—UNFORESEEABLE EMERGENCIES


 


9.1 Unforeseeable Emergencies


 

















 


ARTICLE TEN—MISCELLANEOUS PROVISIONS


 


10.1 Benefits Unfunded 

10.2 ERISA Compliance 

10.3 Plan Does Not Affect Employment 

10.4 Successor to the Employer 

10.5 Benefits not Assignable 

10.6 Source of Payments 

10.7 Distribution to Legally Incapacitated Person 

10.8 Construction 

10.9 Governing Documents 

10.10 Governing Law 

10.11 Headings 

10.12 Counterparts


 


SIGNATURE PAGE


 

















 


BERTUCCI’S CORPORATION 

EXECUTIVE SAVINGS AND INVESTMENT PLAN


 


WHEREAS, Bertucci’s Corporation (hereinafter
referred to as the “Employer”) adopted the NE Restaurant Company, Inc.
Executive Savings and Investment Plan, an unfunded, nonqualified deferred
compensation plan for the benefit of a select group of its management or highly
compensated employees, effective as of December 21, 1993; and


 


WHEREAS, Section 10.7 of said plan provides that the Employer may amend
the plan; and


 


WHEREAS, the name of the NE Restaurant Company, Inc. Executive Savings
and Investment Plan has been changed to the Bertucci’s
Corporation Executive Savings and Investment Plan (hereinafter referred to as
the “Plan”), effective as of January 1, 2005;
and


 


WHEREAS, it is intended that the Plan is to be for the exclusive
benefit of the Participants and their Beneficiaries;


 


NOW, THEREFORE, the Plan is hereby amended by restating the Plan in its
entirety as follows:


 

















 


ARTICLE ONE—DEFINITIONS


 


For purposes of the Plan, unless the context or an alternative
definition specified within another Article provides otherwise, the following
words and phrases shall have the definitions provided:


 


1.1  “ACCOUNT” shall mean the individual
bookkeeping accounts maintained for a Participant under the Plan which shall
record (a) the amounts of Compensation deferred to the Plan pursuant to the
Participant’s election in accordance with Section 3.1, if any, (b) the
Participant’s allocations of Employer matching contributions pursuant to
Section 3.2 and (c) the allocation of investment experience.


 


1.2 “ADMINISTRATOR”
shall mean the Plan Administrator appointed from time to time in
accordance with the provisions of Section 7.1. “Plan Administrator” shall mean
the committee consisting of those persons then holding the corporate office of
Vice President of Human Resources, Vice President-Finance and Senior Vice
President, if any person holds such office in the future, but only for such
time that they are in office. The duties of the Plan Administrator are
specified in Section 7.1.


 


1.3  “BENEFICIARY” shall mean any person, trust,
organization. or estate entitled to receive payment
under the terms of the Plan upon the death of a Participant.


 


1.4  “CODE” shall mean the Internal Revenue Code
of 1986, as amended from time to time.


 


1.5  “COMPENSATION” shall mean a Participant’s
Base Compensation and his Bonus Compensation. Base Compensation means the
compensation paid to a Participant for the Plan Year which is reportable on
Form W-2, exclusive of bonuses. Bonus Compensation means any bonus payable to the
Participant under any incentive plan or program of the Employer.


 


1.6  “EFFECTIVE DATE.” The Plan’s initial Effective Date was
December 21, 1993. The Effective Date of this restated Plan, on and after which
it supersedes the terms of the existing Plan document, is January 1, 2005,
except where the provisions of the Plan shall otherwise specifically provide.
The rights of any Participant who separated from the Employer’s service prior
to this date shall be established under the terms of the Plan as in effect at
the time of the Participant’s separation from service, unless the Participant
subsequently returns to service with the Employer. Rights of spouses and
beneficiaries of such Participants shall also be governed by those documents.


 


1.7  “EMPLOYEE” shall mean a highly compensated
manager or executive of the Employer.


 


1.8 “EMPLOYER”
shall mean the Employer named as party to the Plan, and shall
include any successor(s) thereto which adopt this Plan.


 


1.9 “EMPLOYMENT DATE” shall
mean the first date as of which an Employee is credited with an hour of service
with the Employer.


 

















 


1.10 “NORMAL RETIREMENT DATE” shall mean a
Participant’s sixty-fifth (65th) birthday.


 


1.11 “PARTICIPANT” shall mean any Employee who
is participating in the Plan.


 


1.12  “PLAN” shall mean this Plan as set forth herein and as it may be amended
from time to time.


 


1.13  “PLAN YEAR” shall mean the
12-consecutive-month period beginning January 1 and ending December 31.


 


1.14 “TRUST” shall mean the Trust Agreement
entered into between the Employer and the Trustee forming part of this Plan,
together with any amendments thereto. “Trust Fund” shall mean any and all
property held by the Trustee pursuant to the Trust Agreement, together with
income therefrom.


 


1.15  “TRUSTEE” shall mean the Trustee or
Trustees appointed by the Employer and any successors thereto. The Trustee
shall be an independent third party that may be granted corporate trust powers
under state law.


 


1.16  “VALUATION DATE” shall mean the last day of
the Plan Year and such other date(s) as specified by the Administrator in the
sole exercise of its discretion.


 


1.17  “YEAR OF SERVICE” shall mean, for purposes
of vesting computation, the twelve (12)-
consecutive-month periods commencing with the Employee’s Employment Date, and
anniversaries of that date. Credit shall be given for service performed prior
to the Effective Date of the Plan. 


 

















 


ARTICLE TWO—PLAN
PARTICIPATION


 


2.1  PARTICIPATION. All Employees participating
in this Plan prior to the Plan’s restatement shall continue to participate,
subject to the terms hereof. Each other Employee shall become a Participant
under the Plan effective as of the date on which he is designated by the Plan
Administrator to be a Participant in the Plan. For purposes of Section 3.1, an
Employee shall become a Participant under the Plan effective as of the first
day of the Plan Year for which he elects to defer a portion of his Compensation
and completes a Compensation Deferral Authorization Form, provided that the
Plan Administrator, in its sole discretion, determines that the Employee may
make a compensation deferral election pursuant to Section 3.1. The Compensation
Deferral Authorization Form must be completed, executed and returned to the
Plan Administrator prior to the first day of the Plan Year for which it is
applicable. Notwithstanding the foregoing provisions of this Section 2.1, an
Employee shall become a Participant in the Plan for purposes of Section 3.1
during the first Plan Year in which the Plan Administrator determines that the
Employee may make a compensation deferral election pursuant to Section 3.1
provided that the Participant’s election is made within thirty (30) days after
his participation begins.


 


2.2  TERMINATION OF PARTICIPATION. The Employer,
in its sole discretion, may terminate an Employee’s active participation in the
Plan. In the event that the Employer terminates an Employee’s active
participation, the Employee is no longer eligible to make compensation
deferrals pursuant to Article Three.


 

















 


ARTICLE
THREE—COMPENSATION DEFERRALS 

AND EMPLOYER MATCHING CONTRIBUTIONS


 


3.1 COMPENSATION DEFERRALS.


 


(a) Elections.The Employer, in its sole discretion, may permit a
Participant to elect in writing to defer a portion of his Compensation up to
40% of his Base Compensation and up to 100% of his Bonus Compensation for any
Plan Year. The election once made for a Plan Year is irrevocable for that Plan
Year. The amount of a Participant’s Compensation that is deferred in accordance
with the Participant’s election shall be withheld by the Employer from the
Participant’s Compensation on a ratable basis throughout the Plan Year and/or
on a nonratable, single-sum basis. The amount
deferred on behalf of each Participant shall be contributed by the Employer to
the Trust and allocated to the Participant’s Account at the time it would
otherwise be paid to the Participant. Notwithstanding the foregoing provisions
of this Section 3.1, a Participant may defer a portion of his Compensation for
any Plan Year only if the Participant has elected in writing to defer a portion
of his Compensation prior to the first day of such Plan Year or, in the case of
a Participant’s initial participation in the Plan, the first day of the month
coincident with or next following his designation by the Employer to be a Participant
in the Plan pursuant to Section 2.1.


 


(b) Changes
in Election.  A Participant may, with the consent of the Employer
in its sole discretion, prospectively elect to change or revoke the amount (or
percentage) of his compensation deferral by filing a written election with the
Employer prior to January 1 of the Plan Year for which it is effective. The Participant shall be entitled to change the
amount (or percentage) of his compensation deferral which change shall be
effective as of January 1, provided that the change is made in writing prior to
January 1. A change in election is only permitted to be made prior to January 1
of the Plan Year for which it is applicable.


 


3.2  EMPLOYER MATCHING CONTRIBUTIONS. The
Employer shall contribute to the Plan on behalf of any Participant a matching
contribution equal to 25% of the
Participant’s compensation deferrals pursuant to Section 3.1 up to 6% of
Compensation (disregarding bonuses and special payments). The Employer may, in
its sole discretion, make an additional contribution on behalf of any one
Participant, or on behalf of any number of Participants, for any Plan Year
without making an additional contribution on behalf of other Participants.
Forfeitures which arise from Employer matching contributions shall be used to
reduce Employer matching contributions.


 


3.3  TIMING OF CONTRIBUTIONS. Compensation
deferrals under Section 3.1 and Employer matching contributions under Section
3.2 shall be made to the Trust as soon as administratively feasible.


 

















 


ARTICLE FOUR—ACCOUNTING
RULES


 


4.1 INVESTMENT OF ACCOUNTS AND ACCOUNTING RULES.


 


(a) Investment
Funds. The investment of Participants’ Accounts
shall be made in a manner consistent with the provisions of the Trust.


 


(b) Allocation
of investment Experience.  As of each Valuation Date, the
investment fund(s) of the Trust shall he valued at fair market value, and any
income, loss, appreciation and depreciation (realized and unrealized), and any
paid expenses of the Trust attributable to such fund shall be apportioned among
Participants’ Accounts based upon the value of each Account as of the preceding
Valuation Date. Adjustment of Accounts for investment experience, if any, shall
be deemed to be made as of the Valuation Date to which the adjustment relates,
even if actually made on a later date.


 


(c) Safe
investment Option.  The Administrator may provide that one of the
investment funds offers both a reasonable safety of the principal amount
invested and a reasonable rate of interest return. An investment fund composed
of guaranteed interest contracts through an insurance company, a pooled fund of
short-term bonds and notes, or a money market fund shall be deemed to meet
these standards.


 


(d) Allocation
of Employer Contributions.  Employer contributions shall be
allocated to the Account of each eligible Participant as of the last day of the
period for which the contributions are made.


 


(e) Manner
and Time of Debiting Distributions.  For any Participant who
receives a distribution from his Account, distribution shall be made in accordance
with the provisions dealing with the timing of commencement of benefit payments
in Section 6.2. The distribution shall be equal to the fair market value of the
Participant’s vested Account as of the Valuation Date preceding the
distribution. 


 

















 


ARTICLE FIVE—VESTING, RETIREMENT AND DISABILITY BENEFITS


 


5.1  VESTING. Except as otherwise provided with respect to Normal
Retirement, disability, or death, and subject to the provisions of this Article
Five, a Participant shall have a nonforfeitable
(vested) right to a percentage of his Account derived from Employer matching
contributions under Section 3.2, as follows: 






	
  Years of Service

  	
   

  	
  Vested Percentage

  	
   

  
	
  Less than 1 year

  	
   

  	
  0

  	
  %

  
	
  1 year but less than 2

  	
   

  	
  25

  	
  %

  
	
  2 years but less than 3

  	
   

  	
  50

  	
  %

  
	
  3 years but less than 4

  	
   

  	
  75

  	
  %

  
	
  4 years and thereafter

  	
   

  	
  100

  	
  %

  






 


The nonvested portion of the Participant’s
Account shall be forfeited as of the later of the Participant’s termination of
employment or the date on which the Participant receives the first payment from
his vested Account under the Plan. The amount forfeited shall be used to reduce
Employer matching contributions, as set forth in Section 3.2.


 


5.2  NORMAL RETIREMENT. A Participant who is in
the employment of the Employer at his Normal Retirement Date shall have a nonforfeitable interest in 100% of his Account. A
Participant who continues in employment after his Normal Retirement Date shall
continue to participate under the Plan.


 


5.3  PERMANENT AND TOTAL DISABILITY. If a
Participant incurs a permanent and total disability while in the employ of the
Employer, the Participant shall have a nonforfeitable
interest in 100% of his Account. Payment of his Account balance will be made at
the time and in a manner specified in Article Six, following receipt by the
Plan Administrator of the Participant’s written distribution request. “Permanent
and total disability” shall mean suffering from a physical or mental condition
that, in the opinion of the Administrator and based upon appropriate medical
advice and examination, can be expected to result in death or can be expected
to last for a continuous period of no less than 12 months and for which the
Participant is receiving income replacement benefits for a period of at least
three months under an accident or health plan of the Employer. Receipt of a
Social Security disability award shall be deemed proof of permanent and total
disability. 


 

















 


ARTICLE SIX—MANNER AND TIME OF DISTRIBUTING
BENEFITS


 


6.1 MANNER OF PAYMENT. The Participant’s Account shall be distributed to the Participant (or
to the Participant’s Beneficiary in the event of the Participant’s death) in a
single lump-sum payment.


 


6.2 TIME OF COMMENCEMENT OF BENEFIT PAYMENTS.


 


(a) Normal or
Late Retirement. Participants whose employment has
terminated shall have distribution of their Account commence within sixty (60)
days following their Normal Retirement Date.


 


(b) Disability Retirement.  Participants
whose employment has terminated due to total and permanent disability shall
have distribution of their Account commence within sixty (60) days following
their termination of employment.


 


(c) Pre-retirement
Termination of Employment.  If a Participant terminates
employment for any reason other than Normal Retirement, disability or death,
distribution of his Account balance shall be made within sixty (60) days
following the Participant’s termination of employment.


 


6.3 FURNISHING
INFORMATION. Prior to the payment of any benefit under the
Plan, each Participant or Beneficiary may be required to complete such
administrative forms and furnish such proof as is deemed necessary or
appropriate by the Employer and/or Administrator.


 


6.4 DEATH
BENEFIT.


 


(a) Death
While an Employee.  In the event of the death of a Participant
while in the employ of the Employer, vesting in the Participant’s Account shall
be 100%. The Account shall constitute the Participant’s death benefit to be
distributed under this Article to the Participant’s Beneficiary.


 


(b) Death
After Termination of Employment.  In the
event of the death of a former Participant after termination of employment but
prior to the complete distribution of his Account balance, the undistributed
balance of the Participant’s Account shall be paid to the Participant’s
Beneficiary.


 


6.5 DESIGNATION OF BENEFICIARY. Each Participant
shall file with the Administrator a designation of Beneficiary to receive
payment of death benefits payable hereunder if such Beneficiary should survive
the Participant. However, no married Participant’s designation of a Beneficiary
other than his spouse shall be effective unless the Participant’s spouse has
signed a written consent witnessed by a Plan representative or a Notary Public,
which consent provides for a designation of an alternative Beneficiary. Such
designation of an alternative Beneficiary may not be changed unless a new
consent is signed by the Participant’s spouse. 


 

















 


Beneficiary designations may include primary and contingent
Beneficiaries, and may be revoked or amended at any time in similar manner or
form, and the most recent designation shall govern. In the absence of an
effective designation of Beneficiary, or if the Beneficiary dies before
complete distribution of the Participant’s benefits, all amounts shall be paid
to the surviving spouse of the Participant, if living at least 30 days
following the Participant’s death, or otherwise equally to the Participant’s
then-surviving children, whether by marriage or adopted, and the surviving
issue of any deceased children, per stirpes, or, if
none, to the Participant’s estate. Notification to Participants of the death
benefits under the Plan and the method of designating a Beneficiary shall be
given at the time and in the manner provided by regulations and rulings under
the Code.


 


6.6  TIME AND MODE OF DISTRIBUTING DEATH BENEFITS. In
the event of the death of the Participant, the Participant’s Account shall be
distributed to the Participant’s Beneficiary in a single lump-sum payment
within sixty (60) days following the Participant’s death. 


 

















 


ARTICLE SEVEN—ADMINISTRATION OF THE PLAN


 


7.1 PLAN
ADMINISTRATION. Bertucci’s Corporation
shall be the Plan Administrator, hereinbefore and hereinafter called the
Administrator, and named fiduciary of the Plan, unless the Employer shall
designate a person or committee of persons to be the Administrator and named
fiduciary. The administration of the Plan, as provided herein, including a
determination of the payment of benefits to Participants and their
Beneficiaries, shall be the responsibility of the Administrator. In the event
more than one party shall act as Administrator, all actions shall be made by
majority decisions. In the administration of the Plan, the Administrator may
(a) employ agents to carry out nonfiduciary
responsibilities (other than Trustee responsibilities) and (b) consult with
counsel, who may be counsel to the Employer.


 


The Administrator will administer the Plan in accordance with
established policies, interpretations, practices, and procedures relating to
the Plan and in accordance with the requirements of the Employee Retirement
Income Security Act of 1974, as amended, and other
applicable laws. The Administrator shall have discretion (a) to interpret the
terms of the Plan, (b) to determine factual questions that arise in the course
of administering the Plan, (c) to adopt rules and regulations regarding the
administration of the Plan, (d) to determine the conditions under which
benefits become payable under the Plan and (e) to make any other determinations
that the Administrator believes are necessary and advisable for the
administration of the Plan. Any determination made by the Administrator shall
be final, conclusive and binding on all parties. The Administrator may delegate
all or any portion of its authority to any person or entity.


 


The expenses of administering the Plan and the compensation of all
employees, agents, or counsel of the Administrator, including the accounting
fees, the recordkeeper’s fees, and the fees of any
benefit consulting firm, shall be paid by the Plan, or shall be paid by the
Employer if the Employer so elects. No compensation may be paid by the Plan to
full-time Employees of the Employer.


 


The Administrator shall obtain from the Trustee, not less often than
annually, a report with respect to the value of the assets held in the Trust
Fund, in such form as is required by the Administrator.


 


‘The Administrator shall administer the Plan and adopt such rules and
regulations as, in the opinion of the Administrator, are necessary or advisable
to implement and administer the Plan and to transact its business.


 


7.2  CLAIMS PROCEDURE. Pursuant to procedures
established by the Administrator, adequate notice in writing shall be provided
to any Participant or Beneficiary whose claim for benefits under the Plan has
been denied within 90 days of receipt of such claim; provided, however, that an
extension of time not exceeding 90 days will be available if special
circumstances require an extension of time for processing the claim. If so,
notice of such extension, indicating what special circumstances exist and the
date by which a final decision is expected to be rendered, will be furnished to
the claimant before the initial 90-day period expires. The notice of denial
shall set forth the specific reason for such denial, shall be written in a
manner calculated to be understood by the claimant, and shall advise of the
right to administrative review.


 


Within 90 days after receipt of such notice of denial, the claimant may
request, by mailing or


 

















 


delivery of
written notice to the Plan, a review by the Administrator of the decision
denying the claim. Such petition for review shall state in clear and concise
terms the reason or reasons for disputing the denial and shall be accompanied
by any pertinent documentary material not already furnished. The review will
take into account all comments, documents, records and other information
submitted relating to the claim, without regard to whether such information was
submitted or considered in the initial benefit determination.


 


After such review, the Administrator will determine whether the denial
of the claim was correct and will notify the claimant in writing of its
determination within a reasonable period of time, but not later than 60 days
after the receipt of your request for review by the Administrator; provided,
however, that an extension of time not exceeding 60 days will be available if
special circumstances require an extension of time for processing the appeal.
If so, notice of such extension, indicating what special circumstances exist
and the date by which a final decision is expected to be rendered, will be
furnished to the claimant before the initial 60-day period expires.


 


The claimant will be advised of the Administrator’s decision in
writing. The notice of denial shall set forth the specific reason for such
denial and shall be written in a manner calculated to be understood by the
claimant.


 


If the claimant fails to request review within the 90-day period, it
shall be conclusively determined for all purposes of this Plan that the denial
of such claim by the Administrator is correct.


 


If the Administrator’s determination is favorable to the claimant, it
shall be binding and conclusive. If such determination is adverse to the
claimant, it shall be binding and conclusive unless the claimant notifies the
Administrator within 90 days after the mailing or delivery by the Administrator
of its determination, that the claimant intends to institute legal proceedings
challenging the determination of the Administrator, and the claimant actually
institutes such legal proceeding within 180 days after such mailing or
delivery.


 


The denial of an application or claim as to which the right of review
has been waived or the decision of the Administrator with respect to a petition
for review, shall be final and binding upon all parties, subject only to
judicial review.


 


7.3 TRUST AGREEMENT AND DESIGNATION OF TRUSTEE. The Employer shall create and enter
into a Trust Agreement with the Trustee as designated therein. The Trust, and
any assets held by the Trust to assist the Employer in meeting its obligations
under this Plan, shall conform to the terms of the model trust, as described in
IRS Revenue Procedure 92-64.


 

















 


ARTICLE
EIGHT—AMENDMENT AND TERMINATION


 


8.1  AMENDMENT. The Employer shall have the right to amend,
alter, or modify the Plan at any time, or from time to time, in whole or in
part. Any such amendment shall become effective under its terms upon adoption
by the Employer, unless otherwise set forth in the amendment. However, no
amendment affecting the duties, powers or responsibilities of the Trustee may
be made without the written consent of the Trustee. Except as provided below,
no amendment shall be made to the Plan which would deprive any Participant of
any nonforfeitable portion of his Account.
Notwithstanding any provision of the Plan to the contrary, the Employer may
amend the Plan at any time and in any manner it deems appropriate to comply
with the law or regulations applicable to deferred compensation plans.


 


8.2 TERMINATION OF THE PLAN. The Employer
reserves the right at any time and in its sole discretion to terminate the Plan. The Employer shall
direct the Trustee to distribute the Trust Fund in accordance with the Plan’s distribution provisions to the
Participants and their Beneficiaries, each Participant or Beneficiary receiving
a portion of the Trust Fund equal to the value of his Account as of the date of
distribution. These distributions may be implemented by the continuance of the
Trust and the distribution of the Participants’ Accounts shall be made in such
time and such manner as though the Plan had not terminated, or by any other
appropriate method. Upon distribution of the Trust Fund, the Trustee shall be
discharged from all obligations under the Trust and no Participant shall have
any further right or claim therein.


 

















 


ARTICLE NINE—UNFORESEEABLE
EMERGENCIES


 


9.1 UNFORESEEABLE EMERGENCIES. The
Administrator may distribute to any Participant or his Beneficiary in any one
Plan Year up to 100% of his Account, valued as of the preceding Valuation Date,
in the case of an unforseeable emergency.


 


For purposes of this Section 9.1, an unforeseeable emergency is defined
as severe financial hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as defined
in Section 1 5 2(a) of the Code)
of the Participant, loss of the Participant’s property due to casualty, or
other similar extraordinary and unforesecable
circumstances arising as a result of events beyond the control of the
Participant. Distribution shall not be made to the extent that such hardship is
or may be relieved through reimbursement or compensation by insurance or
otherwise, by liquidation of the Participant’s assets to the extent the
liquidation of such assets would not itself cause severe financial hardship, or
by cessation of salary deferrals under the Plan. Such distribution shall only
be made to the extent reasonably needed to satisfy the emergency need.


 


The Administrator shall require that requests for hardship
distributions be made under procedures which include the Participant’s signed
statement of the facts causing the unforeseeable emergency, the amount of the
financial need and any other information required to ascertain the facts.


 

















 


ARTICLE TEN—MISCELLANEOUS
PROVISIONS


 


10.1  BENEFITS UNFUNDED. It is the intention of the parties that
this Plan is an unfunded deferred compensation plan and that the benefits
payable hereunder are not to be included in the gross income of the Participant
until the taxable year in which the benefits are actually received or otherwise
made available, whichever occurs earlier. The Participant has the status of an
unsecured general creditor of the Employer and the Plan constitutes a mere
promise by the Employer to make benefit payments in the future. In the event
there is an amendment to the Code or the Department of Treasury issues
regulations which would require the Participant to include the benefits payable
hereunder in gross income before they are actually received or otherwise made
available, the Employer, with the consent of the Participant, shall revise and
amend this Plan and/or adopt another method of retirement compensation for the
Participant which is consistent with the deferral purposes contained in this
Plan.


 


10.2  ERISA COMPLIANCE. This Plan is being established
by the Employer with the express intention that the Plan constitutes an
unfunded pension benefit plan maintained by the Employer for the purpose of
providing benefits for a select group of management or highly compensated
employees (“unfunded top-hat plan”) under the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”).
Accordingly, this Plan is being treated as a plan exempt from the
participation, vesting, funding and fiduciary requirements of Title I of ERISA, but subject to the reporting and disclosure
requirements. The Employer intends to comply with the reporting and disclosure
requirements by filing a notice with the United States Department of Labor,
Office of Pension and Welfare Benefit Programs, pursuant to 29 C.F.R. Section 2520.104-23(b). This notice states that the
Plan information will be available to the Secretary of Labor upon request.


 


In the event there is an amendment to ERISA
or the Department of Labor issues revised regulations governing the application
of Title I of ERISA to unfunded top-hat plans and
such amendment or regulations require the Plan to comply with ERISA’s participation, vesting, funding and/or fiduciary
requirements, the Employer reserves the right to revise and amend this Plan or
to adopt another method of retirement compensation consistent with the unfunded
nature of this Plan.


 


10.3 PLAN DOES NOT AFFECT EMPLOYMENT. Neither
the creation of this Plan nor any amendment thereto nor the creation of any
fund nor the payment of benefits hereunder shall be construed as giving any
legal or equitable right to any Employee or Participant against the Employer,
its officers or Employees or against the Trustee, and all liabilities under
this Plan shall be satisfied, if at all, only out of the Trust Fund held by the
Trustee. Participation in the Plan shall not give any Participant any right to
be retained in the employ of the Employer, and the Employer hereby expressly
retains the right to hire and discharge any Employee at any time with or
without cause, as if the Plan had not been adopted, and any such discharged
Participant shall have only such rights or interests in the Trust Fund as may
be specified herein.


 

















 


10.4  SUCCESSOR TO THE EMPLOYER. In the event of
the merger, consolidation, reorganization or sale of assets of the Employer,
under circumstances in which a successor person, firm, or corporation shall
carry on all or a substantial part of the business of the Employer, and such
successor shall employ a substantial number of Employees of the Employer and
shall elect to carry on the provisions of the Plan, such successor shall be
substituted for the Employer under the terms and provisions of the Plan upon
the filing in writing with the Trustee of its election to do so.


 


10.5  BENEFITS NOT ASSIGNABLE. The benefits under
this Plan are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment or garnishment by
creditors of the Participant or the Participant’s Beneficiary, or liable for
the debts, contracts, liabilities, engagements or torts of the Participant or
his Beneficiary.


 


10.6  SOURCE OF PAYMENTS. Any funds which may be
contributed and invested under the provisions of this Plan shall continue to be
subject to the unsecured general creditors of the Employer. lo
the extent that any person acquires a right to receive payments from the
Employer under this Plan, such right shall be no greater than the right of any
unsecured general creditor of the Employer. Notwithstanding the foregoing, this
Section 10.6 is subject to the provisions of the Trust.


 


10.7  DISTRIBUTION TO LEGALLY INCAPACITATED PERSON. In
the event any benefit is payable to a minor or to a person deemed to be
incompetent or to a person otherwise under legal disability, or who is by sole
reason of advanced age, illness, or other physical or mental incapacity
incapable of handling the disposition of his property, the Administrator may
direct the Trustee to apply all or any portion of such benefit directly to the
care, comfort, maintenance, support, education or use of such person or to pay
or distribute the whole or any part of such benefit to (a) the spouse of such
person, (b) the parent of such person, (c) the guardian, committee, or other
legal representative, wherever appointed, of such person, (d) the person with whom
such person shall reside, (e) any other person having the care and control of
such person, or (f) such person. The receipt of any such payment or
distribution is a complete discharge of liability for Plan obligations.


 


10.8  CONSTRUCTION. Wherever appropriate, the use
of the masculine gender shall be extended to include the feminine and/or neuter
or vice versa; and the singular form of words shall be extended to include the
plural; and the plural shall be restricted to mean the singular.


 


10.9  GOVERNING DOCUMENTS. A Participant’s rights
shall be determined under the terms of the Plan as in effect at the Participant’s
date of separation from employment with the Employer.


 


10.10 GOVERNING LAW. The
provisions of this Plan shall be construed under the laws of the state of the situs of the Plan, except to the extent such laws are
preempted by Federal law.


 


10.11 HEADINGS. The Article headings and Section
numbers are included solely for ease of reference. If there is any conflict
between such headings or numbers and the text of the Plan, the text shall
control.


 

















 


10.12 COUNTERPARTS.
This Plan may be executed in
any number of counterparts, each of which shall he deemed an original; said
counterparts shall constitute but one and the same instrument, which may be sufficiently
evidenced by any one counterpart.


 


IN
WITNESS WHEREOF, the Employer, by its duly authorized officer, has caused this
Plan to be executed this 20th day of December, 2004.


 


	
   

  	
  BERTUCCI’S CORPORATION

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  David G. Lloyd

  	
   

  
	
   

  	
  Authorized
  Officer